Excerpt: - - the first question, however, which arises in this case is whether a question of proprietary right can be raised at all in this suit, for explanation 1 says that a plea of proprietary right, which is clearly untenable and intended solely to oust the jurisdiction of the revenue courts, shall not be deemed to raise a question of proprietary right within the meaning of this section. as he failed to raise this plea in the revenue court, and as no material was thus placed before the court on which the application of section 4 could be decided, we are not prepared to decide the point in our extraordinary jurisdiction under article 226. 11. there is no force in this application and itis hereby dismissed with costs to deva......in the court of munsif of bhilwara in 1947. it was transferred under section 6(3) of the rajasthan revenue courts (procedure and jurisdiction) act, 1951, to the court of s. d. o. bhilwara. that court decreed the suit on 29-3-1952. there was an appeal by the present applicant to the additional commissioner, which was dismissed. then followed a second appeal to the board of revenue, which was also dismissed on 29-12-1952. thereafter, the present application was made in this court on 15-1-1953.3. three points are urged on behalf of the applicant in support of the plea that a writ of certiorari be issued by this court quashing the order of the board of revenue. it is first urged that an issue of proprietary right was raised by the present applicant before the trial court, and an issue should.....

Judgment:

Wanchoo, C.J.

1. This is an application under Article 226 of the Constitution by Chunia for issue of a writ, presumably a certiorari, quashing the order of the Board of Revenue, dated 29-12-1952, by which that Court dismissed the appeal of the applicant.

2. The facts, which have led to the present application, are these. A suit was brought by Deva, opposite party, against the applicant and his father Dalchand. It was originally filed in the Court of Munsif of Bhilwara in 1947. It was transferred under Section 6(3) of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951, to the Court of S. D. O. Bhilwara. That Court decreed the suit on 29-3-1952. There was an appeal by the present applicant to the Additional Commissioner, which was dismissed. Then followed a second appeal to the Board of Revenue, which was also dismissed on 29-12-1952. Thereafter, the present application was made in this Court on 15-1-1953.

3. Three points are urged on behalf of the applicant in support of the plea that a writ of certiorari be issued by this Court quashing the order of the Board of Revenue. It is first urged that an issue of proprietary right was raised by the present applicant before the trial Court, and an issue should have been framed under Section 36 of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951, and snould have been referred to the civil Court for decision, and thereafter the suit should have been decided in conformity with the decision of the civil Court. Inasmuch as this was not done, and the issue was not referred to the civil court, the revenue Courts had no jurisdiction to decide the suit.

Secondly, it is urged that on the death of Dalchand, father of the applicant, his other sons were not brought on the record. The suit, therefore, abated in toto, and the revenue Court was not right in granting a decree against the applicant holding that the suit had not abated against him. Lastly, it is urged that the applicant was protected under Section 4 of the Rajasthan Protection of Tenants Ordinance (No. 9) of 1949, and could not have been ejected by the revenue court, and inasmuch as a decree for ejectment has been passed against him, there is an error of law apparent on the face of the record and this Court should interfere.

4. There is no doubt that Section 36 of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951, makes it obligatory on revenue Courts to refer a question of proprietary right in respect of any land, which is the subject-matter of the suit before it, by framing an issue on that question and referring it to the civil Court for decision subject of course to Explanations 1 and 2 of that section. The first question, however, which arises in this case is whether a question of proprietary right can be raised at all in this suit, for Explanation 1 says that a plea of proprietary right, which is clearly untenable and intended solely to oust the jurisdiction of the revenue Courts, shall not be deemed to raise a question of proprietary right within the meaning of this section.

5. The land in dispute lies in the district of Bhilwara in the former State of Mewar. In the plaint there is no mention of the nature of the right which the plaintiff, opposite party, was claiming in the land. All that he said was that the land in dispute measured three bighas and one biswa with a rent (Lagan) of Rs. 3/13/-. He then went on to say that this land was his ancestral land, and was entered in his father's name in the previous settlement, and that he was minor when his father died and so the present applicant took unlawful possession of the land during his minority. The plaint, therefore, did not disclose the exact nature of the right claimed by the plaintiff. The written statement also did not disclose the exact nature of the right claimed by the present applicant. All that he said in paragraph 2 of the written statement was that he did not admit paragraph 2 of the plaint, and that he was in possession as Malik and Mukhalif. These words alone, when used in the context of things prevailing in Rajasthan, cannot be held to raise necessarily a plea of proprietary right. We have to look to the revenue law in force in the area to which this case relates in order to decide whether any plea of proprietary right could have been raised at all according to the facts available from the plaint and the written statement.

6. According to Qanoon Mal, Mewar (Act 5) of 1947, tenants are divided into four classes, namely (1) Kharamdar or Bapidar (2) Khatedar, (3) Mustakil Shikmi & (4) Shikmi. Of these four classes, Kharamdar or Bapidar had transferable and heritable rights, while Khatedar & Mustakil Shikmi had only heritable but not transferable rights. Shikmi had neither heritable nor transferable rights. Their rights depended upon the terms of the contract on which the land was given to him (See Chapter V, Section 37, Qanoon Mal, Mewar). Then Chapter 11 of the same law deals with Jagir, Maufi and Bhom. Further Section 27 of Chapter IV makes it clear that all land in the former State of Mewar belonged to His Highness the Maharana who was the sole proprietor of it.

7. The question naturally arises whether any dispute as to proprietary rights would arise in Mewar under these circumstances. We think that in the peculiar circumstances prevailing in that part of Rajasthan, it would not be right to say that no question of proprietary right whatsoever can arise because His Highness the Maharana was the sole proprietor of the entire land in the State. At the same time, it must be clear that out of four binds of tenants which are mentioned in Section 37, and Jagir, Maufi and Bhom which are mentioned in chapter 11, all cannot claim proprietary title.

To our mind, the minimum, necessary,' before any holder of land in Mewar can claim proprietary title, is that he must have a heritable and transferable right. This heritable and transferable right is found to vest in Jagirdars, Maufidars, Bhomias and Kharamdars or Bapidars, subject, of course, to such restrictions as the law of Mewar provides. But so far as Khatedars, Mustakil Shikmis and Shikmis are concerned, these must be treated as tenants, and where the dispute is about their rights, it cannot be said to be a dispute as to proprietary right in respect of the land on which these rights are claimed.

8. It is true that the Munsif framed an issue to the effect whether the land was plaintiff's and whether the defendant had taken unlawful possession of it. This issue, in our opinion, did not, as it was framed, raise the question of proprietary right, because it seems to us that the issue was also in the same loose terms as the applicant's claim in his written statement to be in possession as Malik and Mukhalif, In any case, no dispute as to proprietary right can arise unless it can be shown from the plaint or from the written statement that this was a case relating to Jagir, Maufi or Bhom, or Kharamdar or Bapidar tenancy. There is nothing on the record to prove that this case relates to any of these rights, and even in the written statement the defendant has not shown that the case is covered by these rights. If the case relates to Khatedari, Mustakil Shikmi or Shikmi tenancy, and the claim of the applicant is only that he is Khatedar, Mustaki Shikmi or Shikmi, there would not be any question as to proprietary rights. There is nothing on the record which would justify us in saying that the question of proprietary right was raised at all in this case within the meaning of S, 36 as explained by us. Therefore, the revenue Courts had full jurisdiction to decide the points raised in this suit,

9. The next point that is urged is that as Dal-chand had died leaving other sons and they were not brought on the record, the whole suit abated and the Revenue Court should not have passed a decree against the applicant alone. We are of opinion that this is not a question of jurisdiction at all. This is a matter which incidentally arises in suits, and the Court having jurisdiction to try the suit can also decide this question. IT the question is wrongly decided, it cannot be a ground for a writ of certiorari, unless it can be said that there has been a patent mistake of law apparent on the face of the record. We are of opinion that in this case it cannot be said that there is a patent mistake of law apparent on the record, and therefore we are not prepared to interfere with the order of the revenue Court on this ground.

10. The last point, that is urged, is that under Section 4 of the Rajasthan (Protection of Tenants) Ordinance, (No. 9) of 1949, the Courts are precluded from ejecting tenants so long as that Ordinance remains in force. But we may point out that this plea of the applicant is rather contradictory to the first plea, namely, that an issue of proprietary right arises in this case. It is obvious that Section 4 requires a decision of one fact before it can be applied, namely whether the person to be ejected is a tenant. It is remarkable that the applicant did not claim the protection of Section 4 of the Rajasthan (Protection of Tenants) Ordinance (No. 9) of 1949 in any of the three revenue Courts. The question, therefore, whether he was a tenant and therefore protected, by Section 4 was never gone into by the revenue Courts. We are of opinion that where a question of fact has to be decided before a provision of law can be applied, it is the duty of the party seeking relief by a writ to have the question of fact decided by the Courts having jurisdiction by raising the plea.

We may point out that in this case, according to the plaint, the applicant is treated as a trespasser who had unlawfully taken possession of the land. Under these circumstances, it was for the applicant to raise the issue that he was a tenant and not a trespasser, and therefore protected under Section 4 of the Ordinance. It is true that he could not raise the point when he filed the written statement because the Ordinance came into force in 1949. But the suit was decided in March, 1952, almost 2 years and 9 months after the Ordinance had come into force. The applicant could have raised this plea at any time after the Ordinance had come into force. As he failed to raise this plea in the revenue Court, and as no material was thus placed before the Court on which the application of Section 4 could be decided, we are not prepared to decide the point in our extraordinary jurisdiction under Article 226.

11. There is no force in this application and itis hereby dismissed with costs to Deva.